Introduction:

• The Supreme Court of India’s ruling from over 50 years ago in the ADM Jabalpur case, which denied individuals the right to challenge illegal detentions during an Emergency, remains a dark chapter in Indian legal history.

• Justice H.R. Khanna’s courageous dissent in the case stands as a beacon of hope. Although the subsequent Justice K.S. Puttaswamy case recognized the right to privacy and rejected ADM Jabalpur, concerns about its enforcement persist.

• Recent actions against journalists from NewsClick, including raids, seizures, and arrests, have reignited calls for digital data protection. This raises questions about whether India is witnessing an Emergency in spirit if not in letter.

Aggressive Executive Actions:

• The aggressive actions of the Union executive against NewsClick, accusing its staff of terrorism, reflect a broader issue of press freedom in India.

• The country ranks 161 out of 180 in the World Press Freedom Index, highlighting concerns about “legal interference” in journalism. Investigations and tax scrutiny targeting 44 media entities and journalists in the last five years underscore these challenges.

• The need for legal reforms, similar to the guidelines proposed in the D.K. Basu case for personal data search and seizure, has gained urgency.

Outdated Legal Framework:

• India’s criminal justice process, as outlined in the Code of Criminal Procedure, is outdated, designed for a time before modern technological advances.
• Chapter 8 of the Code addresses search and seizure powers, emphasizing the importance of obtaining proper warrants.
• However, in practice, these formalities are often disregarded, with individuals willingly complying with law enforcement demands, even without warrants, due to fear of repercussions.

Erosion of Privacy and Constitutional Rights:

• Surveys indicate that a significant portion of the population believes that the police can access their phones without consent.
• Broad exceptions in the law allow the police to sidestep the need for a warrant, and magistrates often issue warrants without thorough review.
• This erosion of safeguards clashes with the right to privacy and protection against self-incrimination as enshrined in the Constitution of India.
• The use of specific laws such as the Prevention of Money Laundering Act and the Income-Tax Act further exacerbates the situation.

Coercion to Unlock Devices:

• The Virendra Khanna vs. State of Karnataka case has set a precedent that allows law enforcement to coerce individuals into unlocking their smartphones, providing unrestricted access to personal data.

• This practice not only affects journalists but also opens the door to mass searches and stop-and-frisk tactics, raising concerns about investigative oppression.

Threats to Journalism:

• The recent searches and seizures targeting journalists associated with NewsClick reveal the dangers posed by the indiscriminate access to personal and professional communications.

• This intrusion not only jeopardizes journalistic integrity but also exposes individuals to potential national security debates, further stifling press freedom.

The Quiet Judiciary:

• The judiciary’s slow response to cases involving press freedom and digital privacy, such as the Paranjoy Guha Thakurta case, underscores the need for corrective action. Advocates for protective measures, including compulsory warrants, seizure specificity, protection against forced device unlocks, and secure evidence handling, seek to address these issues.

• The Supreme Court must heed the lessons of history and act with judicial courage to safeguard India’s constitutional framework.

Conclusion:

India is facing a transformative phase of digital authoritarianism that threatens press freedom and individual privacy.

Principled journalists play a crucial role in upholding the country’s constitutional framework.

It is imperative that the Supreme Court of India takes inspiration from Justice H.R. Khanna’s dissent and acts with judicial courage to protect these fundamental rights, even in the face of sacrifice.